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Reflections on the Origins of the Parens Patriae Jurisdiction 1

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Reflections on the Origins of the Parens Patriae Jurisdiction 1 Dented and rusty like a suit of armour? Reflections on the origins of the parens patriae jurisdiction 1 “[A] noble ideal had somehow survived into the modern era, dented and rusty like a suit of armour. Judges had stood in for the monarch and had been for centuries the guardians of the nation’s children.” Ian McEwan, The Children Act (2014) The parens patriae jurisdiction remains as extensive in its potential application as its origins remain shrouded in uncertainty. Those origins are the subject of two competing historical narratives. In the first narrative: • Jurisdiction was concerned with the administration of infants’ property. • Guardianship was a valuable proprietary and pecuniary right, which the Crown ultimately assumed for itself as a source of revenue. • It was based on feudal principles and the rights of the Crown as superior lord. • Only after the abolition of military tenures did the jurisdiction evolve into the protective jurisdiction that it embodies today. In the second narrative: • The King was the pater patriae and infants and lunatics were objects of royal protection. 1 Justice Francois Kunc, Supreme Court of NSW and Kathleen Heath BEc LLB (Hons). Justice Kunc expresses his sincere gratitude to Ms Heath for her tireless research and enthusiastic collaboration in preparing this paper. The responsibility for any shortcomings is Justice Kunc’s alone. • The protective jurisdiction developed as a separate and distinct jurisdiction from the jurisdiction of the Court to supervise wardships and guardianships. The basis of the jurisdiction was the monarch’s obligation to care for those who could not care for themselves. • This version accommodates the notion that the jurisdiction included, or even developed out of, traditional Christian values that emphasised obligations to the vulnerable. Understanding the jurisdiction’s source or origin is important for its principled exercise. While traditionally focused on lunatics and children, it has now moved far beyond that. By way of examples the Court can contradict the wishes of parents or, in the case of older children, the child themselves ( X v The Sydney Childrens’ Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294), it can sanction things a parent cannot (e.g. compel sterilisation ( Secretary, Department of Health & Community Services v JWB & Anor (Marion’s Case) ( 1991-1992) 175 CLR 218)) and it can give directions about medical treatment for unconscious adults ( Northridge v Central Sydney Area Health Service [200] NSWSC 1241; (2000) 50 NSWLR 549). The argument of this paper is that, given the modern breadth of the jurisdiction, the only satisfactory explanation of its origin or source is the prerogative of the English Christian monarch to care for his or her subjects when they cannot care for themselves. As such, it is perhaps the last example of the exercise by the Court as delegate of a largely unrestrained royal power, which has led to the jurisdiction being described as limitless. While understandable, that is an uphelpful description. Since it is now exercised by the Court, albeit on behalf of the monarch, certain limitations do exist. Three are unlikely 2 to be particularly controversial. These observations also propose a fourth limitation which may be more challenging in these secular times. First, the jurisdiction is engaged in respect of a specific individual who is incompetent legally (e.g. a minor), physically (e.g. unconscious) or mentally (e.g. serious mental disorder) and must be cared for in some way. It is not a jurisdiction that is invoked to enforce a general social good (e.g. to preserve the community from the evils of playing cards: The Case of Monopolies ( Darcy v Atkin ) (1602) 11 Coke’s Rep 846, 77 ER 1260). Second, it is subject to any expressly applicable statutory regime or can be otherwise removed. For example, it was accepted by the parties in the House of Lords in the case of In Re F [1990] 2 AC 1 (a sterilisation case) that the English court no longer possessed the parens patriae jurisdiction in relation to mentally incompetent adults because the last warrant under the Sign Manual delegating the Crown’s prerogative to the Lord Chancellor was revoked in 1960. This necessitated the creation of a declaratory jurisdiction of the kind that was used to authorise the withdrawal of nutrition from a patient in a permanent vegetative state in Airedale NHS Trust v Bland [1993] AC 789. Third, the jurisdiction must be exercised judicially, i.e. rationally and for the purpose for which it exists. This also invokes the notions of procedural fairness and similar considerations which apply in the ordinary conduct of litigation before the courts. A fourth, and perhaps more challenging potential limitation, may derive from the jurisdiction’s origins in that its exercise must be in accordance with ethical norms that, with no disrespect to other traditions, are those of the traditional Christian West. That this is so is demonstrated by the fact that it is the exercise of the monarch’s personal 3 prerogative and that its touchstone is the jurisdiction being the “paternal” care for the wellbeing or best interests of the subject. This may explain the jurisdiction’s presumption of maintaining the sanctity of life (described by the House of Lords in Bland as the fundamental principle (at 863 per Lord Goff of Chieveley)), but not at any cost. The oft cited formulation of O’Keefe J in Northridge (at [24]) that “there is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive all reasonable and appropriate (as opposed to extraordinary, excessively burdensome, intrusive or futile) medical treatment, sustenance and support” is a statement steeped in the moral thinking of the Christian West as now developed in medical ethics. In other contexts we might speak of the Judeo-Christian tradition but, with no disrespect, this cannot be done in the case of the parens patriae jurisdiction for three reasons: • Charity to those outside your family or tribe was a uniquely Christian contribution to the West. Generally Judaism traditionally extended what we would today recognise as charity only to its own. • The English Crown was and is an explicitly Christian institution. • Jewish legal and ethical thinking on some matters of bioethics (including abortion and death) may not be identical to some aspects of western practice that derive from Christian thought. Because so much of what is now thought of as secular ethical thinking derives from Christianity, in most cases specific recognition of those origins will not be necessary. However, in a multicultural society difficult cases may arise e.g. concerning the end of 4 life, where there is a real risk that the originally traditional Christian ethical norms that inform the jurisdiction will collide with other religious based ethical systems e.g. Jewish (cf Rabbi Prof D Sinclair, “Patient Autonomy in the Dying Process and Brain Death: Jewish Law and its Role in Recent Israeli Biomedical Legislation”, (2012) 35 Hamline L Rev 591), Islamic or even non-traditional Christian groups such as Jehovah’s Witnesses (X v The Sydney Childrens’ Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294) This will raise potentially difficult questions for the exercise of the jurisdiction. Two propositions are essential to understanding the origins of the Crown as pater patriae (a title which was first used by the Emperor Augustus in 2 BC), First, the idea of anyone, let alone the state and its ruler, having an obligation to care for the helpless not of your own family or tribe was profoundly radical. For brevity’s sake we will refer to this concept as “universal charity”. Second, the idea was a unique contribution of Christianity and came to be seen as part of the personal prerogatives of a Christian king. The Old Testament certainly commands charity. However, it is generally confined to widows, orphans and other dispossessed of the Jewish community itself. Indeed, the need for ritual purity meant devout Jews would not extend a helping hand to non- Jews. That is why the parable of the Good Samaritan – already a major contributor to our legal system – was so deeply shocking to Jesus’ Jewish audience. The message was that the commandment to love your neighbour extended to non-Jews. Roman society had no concept of universal charity. The New Testament and other early Christian writings of the first three centuries are replete with references to the 5 need to offer charity to all. In Chapter 39 of his famous Apology, Tertullian (145- 220AD) writes of Christian communities (translation by W. Reeve): The kind of treasury we have is not filled with any dishonourable sum, as the price of a purchased religion; everyone puts a little to the public stock, commonly once a month, or when he pleases, only upon the condition that he is both willing and able; there is no compulsion upon any. All here is a freewill offering, and all his collections are deposited in a common bank for charitable uses, not for the support of merry meetings, for drinking and gourmandising, but for feeding the poor and burying the dead, and providing for girls and boys who have no other parents or provisions left to support them, for relieving old people worn out in the service of the saints, or those who have suffered by shipwreck … . Such behaviour was completely different to prevailing Roman imperial concepts. For the Romans, giving to others outside your immediate family was done in order to obtain favours and political advancement. Much giving was devoted to civil projects to acquire popular acclaim (including statues and inscriptions in your honour) and authority, The Christian propensity to universal charity was not popular with the Roman state (as opposed to many of the people) and offered yet another reason for persecution.
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